Three years after the Abbott Government first introduced the
proposed legislation, the controversial Building and
Construction Industry (Improving Productivity) Bill 2016 has
been passed by Commonwealth Parliament. Minister for Employment,
Senator the Hon Michaelia Cash has immediately drawn upon her
powers under the Act to introduce the Code for the Tendering
and Performance of Building Work 2016.
The Code replaces the Building Code 2013 and represents
a significant change to workplace relations for the building and
construction industry, particularly regarding enterprise
agreements. From 2 December 2016, building companies that tender
for Commonwealth-funded building projects must comply with the Code
or they won't be awarded work.
Significantly, under the Code, companies are prohibited from
having enterprise agreements that contain clauses:
requiring consultation with a union about engaging
limiting the head contractor's right to engage
subcontractors, unless the subcontractors apply wages and
conditions at least at the same level as the head contractor's
limiting the right of the employer to make decisions about
redundancy or redeployment based on operational requirements
requiring the presence of union logos and mottos on company
clothing and equipment or the flying of a union flag from a
structure on site, or
requiring the employer to create and maintain a designated area
or shed for exclusive use by a union and its members.
Unregistered agreements and side deals to circumvent the Code
are also prohibited.
Building companies that have non-compliant enterprise agreements
made before the new Code's commencement are still eligible to
be awarded Commonwealth-funded building work but have until 29
November 2018 to become Code-complaint.
The obligations in the former Building Code will continue to
apply where expressions of interest or tenders were issued before
the new Code's commencement.
An employer's duty is very high and can include engaging experts to inspect things such as stairways for latent defects.
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